Column Editor: Laura N. Gasaway (Associate Dean for Academic Affairs, University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599; Phone: 919-962-2295; Fax: 919-962-1193) <[email protected]> www.unc.edu/~unclng/gasaway.htm
QUESTION: Are three paragraphs from a copyrighted work too much to put on a Webpage?
ANSWER: To answer this question requires a fair use analysis. (1) What is the purpose of the use? If the text is on a password-protected Website restricted to enrolled students in a particular course in a nonprofit educational institution, the purpose of the use is different than if one is copying three paragraphs and putting them on an open Website. (2) What is the nature of the copyrighted work? Is the work a novel, a poem, a scientific article? How old is the work? Is it still in print? (3) What percent of the copyrighted work do the three paragraphs represent? If the three paragraphs are from a full-length novel, then this is a very small portion. However, if the work is a poem printed on two pages, three paragraphs represents a fairly substantial portion. Even if the copied paragraphs are a small portion of the work, if the copied paragraphs represent the heart of the work, then the amount is too much. (4) What is the impact of the copying of the three paragraphs on the potential market for or value of the work? Does the use interfere with the sales of the work? Does it destroy the value?
If the three paragraphs are from a mystery novel, and they reveal the “who done it,” then not only did it take the heart of the work but it could also destroy the market for the novel. It is always possible to seek permission from the copyright holder to use the three paragraphs on the Webpage.
QUESTION: Section 108(f)(3) appears to be a very unusual section that allows libraries to record television news programs. What is the reason for this provision?
ANSWER: When television news programs began, their value was not fully appreciated by the networks. In fact, for years CBS did not videotape Walter Cronkite and the Evening News. Vanderbilt University Library started the Television News Archive and recorded network news daily. A library could borrow a copy of a specific news tape from the Archive. At some point, CBS began to videotape Walter Cronkite and sued Vanderbilt University for infringing its reproduction and distribution rights. During the debates on the Copyright Act of 1976, Congress recognized that there was something unique about the news, and it gave libraries the right to record the TV news. After passage of the Act, CBS dropped the suit against Vanderbilt, which still maintains the Television News Archive. See http://tvnews.vanderbilt.edu/.
QUESTION: How useful has section 108(h) been to libraries and archives?
ANSWER: Designed to ameliorate the effects of term extension, section 108(h) was added to the Copyright Act in 1998. It is an interesting provision that allows libraries, archives, and nonprofit educational institutions to reproduce, distribute, perform, or display copyrighted works during the last 20 years of their terms if certain conditions are met. At this point, the author has already been dead for 50 years. In order to take advantage of the exception, a library may not take advantage of this exception if: (1) the work is subject to normal commercial exploitation; (2) if a copy can be obtained at a reasonable price; or (3) the copyright owner provides notice that either of the other two conditions are met.
The benefit is that under section 108(h), a library may digitize a work and put it on a publicly accessible Website. In other words, there is no premises restriction, unlike sections 108(b) and (c). The U.S. Copyright Office created a process by which publishers could electronically provide the notice in number 3 above. Unfortunately, not one single copyright owner has utilized this process to notify the world that its works are available or that it intends to republish or reprint such a work.
QUESTION: The Copyright Act appears particularly outdated, as it pertains to audiovisual works. Why does Congress not update it?
ANSWER: There are many reasons that Congress hesitates to amend the copyright law. Moreover, it is not just the provisions dealing with audiovisual works that sorely need to be modernized. First, technology changes so rapidly that lawmakers have difficulty deciding how to amend laws so that they do not impede technological developments. Second, there have been some changes in the law, but they were pretty minor as applied to audiovisual works, but not since the Digital Millennium Copyright Act of 1998. These changes have not worked very well, either. Third, copyright owners and users are copyrighted works are pretty polarized right now, and any changes that one side wants likely will be fought by the other side. The spirit of legislative compromise seems to be dead on many fronts and not just copyright.
QUESTION: What is the difference between the composer’s rights and royalties and those of the music publishing company and recording company?
ANSWER: Under U.S. copyright law, the copyright in a work initially vests with the author, i.e., the composer. So, the author is the owner of the copyright and is entitled to the exclusive rights provided under the Copyright Act: reproduction, distribution, adaptation, performance, and display. If the work in question is a sound recording, the owner also has the right of public performance via digital transmission.
The composer usually transfers to the music publisher only the rights of reproduction and distribution for the composition. The publisher then collects royalties for sales of copies of the sheet music and pays a share of the royalties back to the composer. Generally, the composer retains all of the other rights such as public performance, so he continues to collect royalties for the public performance of his music.
A sound recording of the performance of a musical composition embodies at least two, and sometimes three, separate copyrights: the underlying musical composition, the recording of the performance of the music, and a copyright in the arrangement of the music for the sound recording. The performer, who may or may not be the composer, normally transfers the copyright in the performance of the music to the recording company that collects royalties for the sale of the recordings. The composer is compensated for the sale of recordings through the mechanical license, a compulsory license under the statute. The composer normally continues to own the copyright in the musical composition, however.
When music is played on radio or television, royalties are paid to the composer in the form of a blanket license with the performance royalty organizations such as the Association of Composers, Authors and Publishers (ASCAP), Broadcast Music Inc. (BMI), and SESAC, Inc. There are no performance rights in sound recordings except for digital transmission. So, traditionally, the recording company makes its money from the sale of records and not from performance. Both the record company and the performers share the royalties from digital transmission of sound recording (for example, from Webcasting).
QUESTION: Both sections 108 (c) and (e) require a library to make a reasonable effort to acquire an unused copy of a work at a “fair price.” But section 108(h) specifies a “reasonable price.” What is the difference?
ANSWER: There appears to be no functional difference. Section 108(h) was a 1998 amendment to the statute, and it uses “reasonable price.” Maybe it was sloppy legislative drafting. There is nothing in the legislative history to account for the difference, and there has been no litigation to provide guidance.